The New York Times prints an Op-ed about That Scalia Charm. I settled down with the article, with a nice glass of a fine merlot, assuming that it would extol those virtues about which I was already cognizant: His sense of humor. His southern ways. But instead, I was shocked - shocked! - to find the title of the opinion piece to be ironic.

Instead, it's an unsubstantiated attack upon Justice Scalia's originalism with respect to the juvenile death penalty. He works with a common equivocation that many commentators seem to believe, namely that "In drafting the Constitution, and particularly the Bill of Rights, the Founders chose to use broad phrases that necessarily require interpretation." The problem is with the word "interpretation." The founders certainly did not envision that "interpretation" was used as with the context of "interpretive dance" - they clearly meant for the actual language and meaning to be interpreted consistently with the context in which the laws were passed. What he is actually talking about isn't "interpretation," what is actually being discussed in this vein is reinterpretation - a role that was specifically delegated to the legislature and the states. Sadly, in addition, the claim that

"Since its landmark 1803 ruling in Marbury v. Madison, the court has held that it is the final word on the Constitution's meaning."

is also false. Judicial review, as created by Marbury v. Madison - was envisioned by Hamilton in the Federalist papers. It is simply the proposition that, when two statutes conflict, the courts need to resolve the disparity. In the case of normal laws, the newer law trumps the old. In the case of the constitution, it is simply that the superstatute trumps the statute. It's not some amorphous philosophical principle of interpreting the singular statute (the constitution) with respect to any other standard - in fact, it relies upon the idea that the constitution has a fixed meaning.

The other part of the argument in favor of Roper I find odd is the constant harping that

In the recent juvenile death penalty case, the court was doing its job of determining what one such phrase, "cruel and unusual punishment," means today.

This begs the question of whether or not, even on community standards, the death penalty for juveniles is something foreclosed by the eighth amendment. Prior to Roper, roughly twenty percent of states with the death penalty allowed juvenile execution. Are we really ready to say that "four out of five" constitutes enough of a community stand against a practice that it's beyond the pale of acceptable conduct? Especially given that it's well within the range of possibility (something the court didn't even consider) that there are parallel reasons for prohibiting the use of the death penalty. It's just assumed, somehow, that moral outrage is the only possible reason. Practices involving evidence collection and client-directed inquiry, for example, might make it a consideration. The simple fact that a juvenile doesn't have that much perceptible interaction with respect to society, nor do they possess as a class nearly as many reliable character witnesses or a very complete background means that a legislature might have reasons to foreclose it as a penalty absent some Rawlsean concept of justice.

The very fact that the court went to international law, something roundly trounced by others as a standard for judicial opinion crafting, suggests that there was insufficiency within the American framework for justifying such an opinion - especially in light of Sanford v. Kentucky. In writing for the majority, Kennedy notes "The plurality opinion [in Thompson v. Oklahoma, that set the extant bar on executing juveniles 16 and under] explained that no death penalty State that had given express consideration to a minimum age for the death penalty had set the age lower than 16." The opinion he references then goes on to talk about the nature of the offenders vis a vis rationality and so on, but only substitutes its thoughts and analysis when it finds that there is no legislative opinion to the contrary. It is saying, in essence, "No state has ever said otherwise, and on top of that we say this." With respect to juveniles, however, ten states have specific statutory or referendum-set age requirements that put the lower-bound at either sixteen or seventeen, and nine others have the boundary below eighteen, as set by Thompson who have had ample time to act if they find it to be repugnant. In Roper, Kennedy says something different in kind. He says, in essence, "Despite the states' stance on this, we believe they are wrong and we are right. Our judgment overrides theirs." This was the pervasive fear of the populace when the constitution was first being adopted. It prompted Alexander Hamilton, in Federalist 78, to write,

"...though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive... liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments."

When the court begins interjecting its moral opinion, as opposed to its legal guidance, into the laws, the rights of the states are being undermined. You wonder why courts in Mississippi refuse to remove Ten Commandments monuments. My very own high school in Texas, fewer than six months after the decision in Doe v. Santa Fe School District, an opinion outlawing prayer at football games or graduations, had three separate prayers during our commencement ceremony. The court requires the executive to enforce its orders, and for lesser courts to administer them, and by giving themselves so much freedom they also inadvertently grant lower courts a leeway that makes the very opinions Kennedy would proffer so readily less effective. They make themselves seem like political actors, and thus, when they issue a ruling about something less readily quantifiable, the states and localities feel justified in rejecting the Supreme Court's edicts.

The Op-Ed also notes that

[Scalia] attacked the idea of a "living Constitution," one that evolves with modern sensibilities, which the Supreme Court has long recognized in its jurisprudence, and of "evolving notions of decency," a standard the court uses to interpret the Eighth Amendment prohibition on "cruel and unusual punishments" in cases like those involving the death penalty.

I'm not sure exactly what "long recognized in its jurisprudence" means here. Is he referring specifically to the 'evolving standards' jurisprudence, which started in 1957/58? There (Trop v. Dulles) the punishment in question was expatriation, something that seems bizarre as a punishment, and would have seemed crazy to the founders, as well. The opinion in Trop to some extent referred to the international community, though they did so as ancillary to the question of whether or not the denaturalization was penal in nature (as opposed to regulatory). If it were the latter, they readily admit that it would be somewhat within the powers of the congress. If punitive, however, it is clearly not within the realm of acceptable action to kick someone out of your club. Citizenship, they explained, was not a license that expired or could be revoked. It was the most basic right, even surpassing that of life. If, on the other hand, it is the general proposition of substantive due process out of which 'evolving standards' jurisprudence has been wrought, this sort of reasoning would foreclose such silly decision as Brown v. Board or Heart of Atlanta. Substantive due process was not a concept created in the pursuit of liberty, and has historically been used as a weapon wielded by the courts for less than savory purpose.

Another "interesting" portion of the editorial is where the claim is made that

"The implications of Justice Scalia's remarks are sweeping. Many of the most central principles of American constitutional law - from the right to a court-appointed lawyer to the right to buy contraception - have emerged from the court's evolving sense of the meaning of constitutional clauses.

First of all, the right to a court-appointed lawyer comes from the sixth amendment, which reads, in part, that "In all criminal prosecutions, the accused shall enjoy the right... to have the assistance of counsel for his defense." It's not a far jump to say that you must provide a lawyer, since absent that or reliance upon pro bono work, trials where a defendant cannot afford a lawyer would not be granting an explicit right. As for the "right to buy contraception"... that's not a right. It's just not. I'm sorry, the court made that up. Thin. Bloody. Air. That's a fantastic argument as to why Scalia is correct.

Interestingly, the Op-ed ends with two contradictory statements:

1. "But his approach would mean throwing out much of the nation's existing constitutional law, and depriving Americans of basic rights."2. "Justice Scalia's campaign to be the next chief justice, if it is that, is a timely reminder of why he would be a disastrous choice for the job."

Let's get out of the way that "rights" in (1) means pretty much "created rights," not "actual rights." The simple fact is that, if Justice Scalia becoming the next chief justice actually meant that "much of the nation's existinc constitutional law" with respect to methods of "evolving standards" interpretation were thrown out, that would make him the perfect choice for the job. The only people it would be a disaster for are the minority who agree with the ultraliberal stances taken time and time again by the usurptuous court, who apparently fancies themselves an aristocricy at best, and Philosopher kings with a birthright mandate for overruling their surfs, at worst. The people it would be beneficial for just happen to be both the majority, and those who believe that a democracy is preferable to rule by judicial fiat.